FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Earle & Earle [2022] FedCFamC1F 16
File number(s): PAC 2016 of 2018 Judgment of: HANNAM J Date of judgment: 21 January 2022 Catchwords: FAMILY LAW – COSTS – Where the father seeks orders that the mother pay his costs in the parenting proceedings on an indemnity basis – Where the mother opposes the father’s application and seeks that it be dismissed – Where the father contends that the mother’s conduct in the proceedings warrants a costs order in his favour – Where the mother’s mental health was a significant concern in the parenting proceedings about which findings were made – Where in the context of the mother’s mental health the Court does not consider it just to make a costs order against her and there is otherwise insufficient justification to depart from the usual rule that each party bears their own costs – Father’s application dismissed except so far as it relates to an order that he be reimbursed for funds paid by him representing the mother’s half-share of the costs of the expert report. Legislation: Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 r 15.47
Cases cited: D & D (Costs) (No. 2) (2010) FLC 93-435
Division: Division 1 First Instance Number of paragraphs: 89 Date of last submission/s: 20 October 2021 Place: Parramatta Solicitor for the Applicant: Self-Represented Solicitor for the Respondent: Somerville Legal ORDERS
PAC 2016 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR EARLE
Applicant
AND: MS EARLE
Respondent
ORDER MADE BY:
HANNAM J
DATE OF ORDER:
21 JANUARY 2022
THE COURT ORDERS THAT:
1.The mother reimburse the father for funds paid by him representing the mother’s half-share of the costs of the expert report dated 7 November 2019.
2.The father’s application for costs is otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Earle & Earle has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
INTRODUCTION
The parties (“the mother” and “the father”) have been involved in highly acrimonious proceedings concerning the future parenting of their two young children and property settlement since 2018.
The proceedings were bifurcated, with the parenting dispute being determined first. At the…
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- Earle & Earle [2022] FedCFamC1F 16
- Case
- [2022] FedCFamC1F 16
- Decision Date
CaseChat Overview and Summary
The case of Earle & Earle concerns a dispute between the mother and the father regarding the financial consequences of parenting orders, particularly whether the mother should bear the father’s legal costs on an indemnity basis. The dispute arose out of a larger family law case where both parents had raised concerns about the other’s parenting capabilities and the safety of their children. The court was tasked with determining whether the financial burden on the mother would be excessive and whether it was justified to order her to pay the father’s legal costs.
The legal issues the court needed to address were whether there were exceptional circumstances that warranted a departure from the general rule that each party bears their own costs and whether such exceptional circumstances existed to justify ordering the mother to pay the father’s costs on an indemnity basis. The court also needed to determine if the mother should reimburse the father for his share of the costs associated with an expert’s report.
In deciding the matter, the court considered the financial implications for the mother if the father’s application was successful. It was highlighted that such an order would significantly impact the mother’s ability to afford necessary medical treatment for her mental health issues, maintain independent living, and meet ongoing costs associated with the children’s supervision. The court found that the father’s application for indemnity costs was punitive, especially given the limited property available for distribution and the contentious nature of the property settlement proceedings. The court further noted that the mother’s mental health difficulties warranted particular consideration. Given these factors, the court concluded that there were insufficient grounds to depart from the usual rule that each party bears their own costs and dismissed the father’s application for indemnity costs. However, the court did order the mother to reimburse the father for his share of the costs related to the expert’s report, as per the agreed terms of the parties’ consent orders.
The legal issues the court needed to address were whether there were exceptional circumstances that warranted a departure from the general rule that each party bears their own costs and whether such exceptional circumstances existed to justify ordering the mother to pay the father’s costs on an indemnity basis. The court also needed to determine if the mother should reimburse the father for his share of the costs associated with an expert’s report.
In deciding the matter, the court considered the financial implications for the mother if the father’s application was successful. It was highlighted that such an order would significantly impact the mother’s ability to afford necessary medical treatment for her mental health issues, maintain independent living, and meet ongoing costs associated with the children’s supervision. The court found that the father’s application for indemnity costs was punitive, especially given the limited property available for distribution and the contentious nature of the property settlement proceedings. The court further noted that the mother’s mental health difficulties warranted particular consideration. Given these factors, the court concluded that there were insufficient grounds to depart from the usual rule that each party bears their own costs and dismissed the father’s application for indemnity costs. However, the court did order the mother to reimburse the father for his share of the costs related to the expert’s report, as per the agreed terms of the parties’ consent orders.
Orders
Orders of the court
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Background
Background to the litigation
The question for me to determine is whether there are circumstances that justify departing from the usual rule that each party shall bear his or her own costs, and if so, whether these circumstances are exceptional to justify that an order be made that the mother pay the father’s costs on an indemnity basis.BACKGROUND The mother is 47 and the father is 50. They married in 2013 and had a son in 2016 and a daughter in 2017 (“the children”). The relevant background to the parties’ dispute is outlined in my Reasons for Judgment[1] delivered in August 2021 with respect to final parenting orders (“the August 2021 Judgment”). [1] Earle & Earle (No. 3) [2021] FamCA 568. It suffices to say for the purposes of the current application that shortly after the parties separated in 2018, the father initiated parenting proceedings. In the course of the litigation, each parent raised various concerns about the children’s safety in the care of the other parent. The mother, in particular, alleged that the father and other members of the paternal family had been physically abusive towards the children. It had also been her case that the father had several shortcomings in his ability to parent the children, claiming at one point, for example, that the father’s home environment was “hazardous” and “dangerous”. Ultimately, the mother did not pursue any of her allegations of risk against the father at final hearing and rather proposed orders that would see the children maintain a meaningful relationship with both parents. The gravamen of the father’s case against the mother, which assumed significance at final hearing, was allegations that the mother suffered from serious mental health difficulties that affected her parental capacity. It had been a significant theme in the parenting proceedings that the mother, and to a large extent a maternal uncle who formed part of the mother’s household for some time (“the maternal uncle”), held firm ‘paranoid views’ about matters related to the murder of the maternal grandfather many years ago. Included in these views were serious misgivings about interstate police who investigated the maternal grandfather’s death and concerns that police were influencing various lawyers retained by the mother and were conspiring with them to “sabotage” her family law case. There were also concerns held by the mother and maternal uncle that the father was somehow also involved in this “conspiracy”. A court-appointed single expert (“the expert”) assessed the family on two separate occasions and gave evidence about certain risk issues relating to the children including those arising from the mother’s mental health difficulties. In summary, the expert was initially of the view that the mother had a “paranoid stance” in relation to the father’s involvement in a conspiracy with police, and when assessed a second time in 2020, the mother’s paranoid beliefs regarding the father had evolved into “delusions”. This opinion was contained in the expert’s second report. When cross-examined at final hearing, the expert maintained that the mother’s psychiatric symptoms were consistent with a diagnosis of schizophrenia and were disrupting the mother’s functioning in such a way that unless assertively treated, the children would be placed at risk in her care.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
In written submissions made on her behalf the financial consequences for the mother are set out if the orders are made as sought by the father. These are that the mother will have reduced capacity to obtain necessary medical treatment to address her mental health difficulties, reduced capacity to live independently of the maternal uncle and great difficulty and ultimately an inability to meet the ongoing half share of the costs of supervision of the children’s time. It is submitted that the father’s orders if made would be particularly punitive as he seeks that any such order be satisfied by deduction from the mother’s share in the property settlement proceedings. Given the limited property for distribution and the father’s contentions in those proceedings such orders sought by the father may even result in the mother owing a debt to the father. In my view weight must be given to these matters when determining this application.CONCLUSION Having regard to the foregoing matters, and attaching particular weight to the mother’s mental health difficulties, I am of the view that there is insufficient justification to depart from the usual rule that each party bears their own costs. As I do not consider there are circumstances that justify a departure from this rule, I do not need to consider the father’s submissions with respect to indemnity costs. Accordingly, the father’s application that the mother pay his costs is dismissed, except so far as it relates to an application that the mother share the expenses of the expert’s report. Reimbursement of funds paid for an expert report The father seeks as part of his costs application that the mother pay costs associated with the preparation of the expert’s initial report. Orders were made with the parties’ consent on 19 March 2019 that a Chapter 15 expert be appointed for the purposes of preparing a report relating to the welfare of the children. One of the orders provided that “the cost of the expert report be funded by the parties equally”. It is the father’s case that the mother contributed “only to the deposit for the first report”. The father does not specify in money terms how much of the mother’s contribution represented the full amount owing to the expert, there being also no evidence provided of the total cost of the expert report. The father further submits that the “most substantial invoice” for the expert’s initial report was met by him in full, although there is no evidence of this invoice beyond a reference to its allocated invoice number. He also claims that a further request for funds in the sum of $2,500 was made to complete the preparation of the expert report but he does not provide evidence to support this assertion. In summary, the father merely specifies in his written submissions that the mother’s half share of the costs for the expert’s first report owed to him is $6,565.00. Through his costs application, the father seeks that this amount be reimbursed.
Ratio Decidendi
Legal Principle Established
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